Case Document

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HCAL 965/2023

[2026] HKCFI 4923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 965 OF 2023

BETWEEN

	Saputri Eka Mailawati	Applicant
	and
	Torture Claims Appeal Board	Putative
		Respondent
	and
	Director of Immigration	Putative
		Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Indonesia who last arrived in Hong Kong on 18 June 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 9 June 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 7 November 2019, she did not depart and instead overstayed, and more than one year later on 18 December 2020 she surrendered to the Immigration Department and raised a non‑refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her creditor for failing to repay her debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Lampung, Indonesia. After leaving school she started coming to Hong Kong in 2010 to work as a foreign domestic helper to make her living.

3.In 2018 to help her younger sister to hire a lawyer to deal with her sister’s court case in Indonesia, the Applicant borrowed a loan for her sister from some local money‑lender to be repaid by monthly instalments by her remitting money from Hong Kong to her mother in Indonesia for the loan repayments.

4.However, her last employment was prematurely terminated in November 2019, and when she was unable to make any loan repayments, her creditor then came to her mother’s home in Indonesia to threaten to kill the Applicant if she failed to repay her loan, and so she was afraid to return to Indonesia and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 6 October 2021 and attended screening interview before the Immigration Department with legal representation.

5.By a Notice of Decision dated 25 October 2021 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from her creditor, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows that reasonable internal relocation alternatives are available in Indonesia with a large population of 267 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Jakarta or Palembang where it would be difficult if not impossible for her creditor to locate her.

7.On 5 November 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 8 May 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 18 May 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision[1] the Board accepted the Applicant’s claim of fear of harm from her creditor over her outstanding debts but found no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between her and her creditor only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia if resorted to as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her creditor that her claim for non‑refoulement protection failed on all applicable grounds.

9.On 19 June 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  Procedural impropriety in failing to consider the facts raised by the Applicant in support of her claim;

(2)  Procedural impropriety in failing to consider the fear of the Applicant of why she could not return to her home country as raised by her in support of her claim;

(3)  Failure to consider the relevant COI that the authorities of her home country would not be able to protect the Applicant.

10.These are however all just some bare and bald assertions of the Applicant containing a few key words or phrases but without any relevant or necessary details or particulars or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

11.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.Moreover, the Applicant has recently on 7 July 2026 in writing requested to withdraw her application as her problems in her home country have been resolved and that she now wants to return to Indonesia.

15.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no more problem for her to return to her home country, I accordingly dismiss her leave application.

Dated the 28^th day of August 2026

(Joyce Ooi)
for Registrar, High Court

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 28 August 2026 Saputri Eka Mailawati Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28 August 2026 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 19147 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1711/21 (formerly as RBCZ 107/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)